Expansion of the Provisional Unlawful Presence Waiver

Today, July 29, 2016, the Department of Homeland Security (DHS) will publish in the Federal Register a final rule expanding eligibility for the provisional unlawful presence waiver, filed on Form I-601A. The new rule will take effect on August 29, 2016.

Since its launch in March 2013, many immigrants have utilized this waiver to minimize the time that they are separated from friends, family, work, and their community because they are able to apply for the waiver and receive approval before traveling abroad for consular processing. For certain applications, the process that often results in many months of separation now can be completed in less than two weeks. Additionally, because the waiver is discretionary, immigrants benefit from the knowledge that DHS has determined that they warrant a positive exercise of discretion before they leave the country, making their journey and application process far less risky.

Until the passage of this new rule, however, the provisional waiver was only available to immigrants who were the spouses, children, and parents of certain U.S. citizens, otherwise known as “immediate relatives.” The waiver was further limited because the applicant had to prove that a U.S. citizen spouse or parent would experience extreme hardship upon denial of the immigrant’s admission to the United States; in other words, hardship to a spouse or parent who was a lawful permanent resident (“LPR” or “green card” holder) was not taken into consideration.

Beginning August 29, 2016, the rule will be expanded to include all individuals who are statutorily eligible for the unlawful presence waiver and who can establish extreme hardship to a U.S. citizen or LPR spouse or parent. The expanded group of individuals includes the beneficiaries of family-sponsored and employment-based immigrant visa petitions, and Diversity Visa selectees, so long as they have a qualifying relative under the statute for purposes of the extreme hardship determination (a U.S. citizen or LPR spouse or parent). Some additional changes were made to the regulation, including the elimination of a denial based on a “reason to believe” that another ground of inadmissibility exists.

DHS comments associated with the publishing of the final rule make it clear that this expansion is a benefit to the entire nation: it encourages the efficient use of government resources by streamlining a process that has previously been fraught with problems, it encourages eligible immigrant visa applicants to proceed forward with their visa processing and therefore integrate more quickly and fully into their U.S. community, and, most importantly, it minimizes the time that U.S. citizens and lawful permanent residents are separated from their loved ones. DHS estimates that approximately 100,000 individuals will become eligible under the new rule during the rule’s 10-year period of analysis. The expansion is a welcome addition to our immigration system, and comes at a time when change is desperately needed.